Reading Room Document

Civil Use of Privileged Information Collected for Foreign Intelligence Purposes

This memo analyzed whether the government could attempt to use privileged communications between a foreign government and its representing attorneys, which had been collected for use in foreign policy, in a civil case. The OLC concluded that, if the communications were protected by statue or the Constitution as privileged, they would retain their privileged nature and a court would likely not permit their use in a civil proceeding. The opinion noted that a court could also enter a protective order limiting the further disclosure or use of the communications. However, the opinion also explained that Constitutional protections may not apply in the same way to a foreign government’s communications with its attorneys, and that common-law principles of privilege would likely not prohibit the use of the communications.

May 6, 1980